304 Mass. 650 | Mass. | 1939
The defendant appealed from an order of the Appellate Division of the Municipal Court of the City of Boston dismissing the report of the trial judge, who found for the plaintiff. There was evidence that the plaintiff, on August 23, 1937, took a construction mortgage on real estate belonging to one Walchok. In the building that was constructed upon the mortgaged premises, one Slotnick installed plumbing fixtures that he bought from the defendant. Slotnick assigned to the defendant $700 “out of” his contract with the owner, who accepted the assignment. On May 13, 1938, the plaintiff took possession of the premises for the purpose of foreclosing its mortgage. When the owner found that he was about to lose the property by foreclosure, he ordered Slotnick to remove the fixtures and requested the defendant to take them back and credit his account. Slotnick, with the aid of the defendant’s representatives, gained an entrance to the house, removed the fixtures, and delivered them at the defendant’s place of business. The fixtures had been installed prior to the date when the plaintiff took possession under its mortgage, and they were removed at some time between that date and June 14, 1938, when the plaintiff foreclosed its mortgage and realized by the foreclosure sale, $5,650. At the trial the defendant asked the plaintiff’s treasurer what amount was due on its mortgage at the time of foreclosure, including principal, interest, costs and expenses. The question was excluded and the defendant made an offer of proof that, at the time of the foreclosure sale, the total amount due was $5,600. The defendant seasonably requested a report of the exclusion of this evidence. The report contains the defendant’s requests for rulings that were refused, but at the argument the defendant stated that the only issue is whether the evidence offered and excluded was admissible. No other points are argued.
In this Commonwealth a mortgagee of real estate, at
In King v. Bangs, 120 Mass. 514, the plaintiff, as mortgagee, claimed to recover for the injury to his security. The declaration was for trespass to real estate and alleged the taking and carrying away of fixtures and other parts of a dwelling house thereon standing. The defendants offered to show that after the injury complained of, and before the action was begun, the plaintiff, under the power of sale in his mortgage, sold the premises for more than enough to pay his debt and all prior encumbrances. It was held that the evidence upon the question of damages was improperly excluded. In the course of the opinion, it was said, at page 516: "If the plaintiff were permitted here to recover full damages, he would either hold the same with no responsibility over, or he would be obliged to pay
The plaintiff’s contention that the defendant has no right to the evidence that was excluded because it has failed to plead the subject matter of the evidence by way of an equitable defence cannot be sustained. King v. Bangs, 120 Mass. 514.
The evidence that was excluded was admissible.
Order dismissing report reversed.
Case to stand for a new trial.